Thomas v. Owens et al, No. 3:2007cv00315 - Document 4 (N.D. Ind. 2007)

Court Description: OPINION AND ORDER granting Plaintiff leave to proceed against Owens and Goodlow in their individual capacities for monetary damages for failing to protect him in violation of the 8th Amendment, dismissing all other claims. Signed by Judge James T Moody on 8/1/07. (sdf)

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Thomas v. Owens et al Doc. 4 case 3:07-cv-00315-JTM-CAN document 4 filed 08/01/2007 page 1 of 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION HERMAN THOMAS, Plaintiff, v. KENNETH OWENS, and THOMAS GOODLOW, Defendants. ) ) ) ) ) ) ) ) ) ) No. 3:07 CV 315 OPINION AND ORDER Herman Thomas, a pro se prisoner, submitted a complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) provides for the dismissal of a complaint, or any portion of a complaint, for failure to state a claim upon which relief can be granted. Courts apply the same standard under § 1915A as when addressing a motion under RULE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). In order to state a cause of action under 42 U.S.C. § 1983, . . . the plaintiff must allege that some person has deprived him of a federal right [and] . . . he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy RULE 8 s notice pleading minimum and RULE 9(b) s requirement that motive and intent be pleaded generally. Dockets.Justia.com case 3:07-cv-00315-JTM-CAN document 4 filed 08/01/2007 page 2 of 4 Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted). Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a RULE 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___; 127 S.Ct. 1955, 1964-65 (2007) (quotation marks, ellipsis, citations and footnote omitted). While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant set out in detail the facts upon which he bases his claim, RULE 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests. Id. at n.3 (quotation marks and citation omitted). Furthermore, on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id., 127 S.Ct. at 1965, citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (quotation marks omitted). Thomas alleges that he asked the defendants to move him because of the danger posed by his cellmate. He alleges that he was not moved and was attacked by his cellmate. Under the Eighth Amendment, prison officials have a duty to protect 2 case 3:07-cv-00315-JTM-CAN document 4 filed 08/01/2007 page 3 of 4 prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations and internal punctuation omitted). When an inmate is attacked by another inmate, the Eighth Amendment is violated only if deliberate indifference by prison officials effectively condones the attack by allowing it to happen . . .. Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996). Deliberate indifference is comparable to criminal recklessness, and is shown by something approaching a total unconcern for [the plaintiff s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). The defendant must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). A defendant must have actual knowledge of impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant s failure to prevent it. Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985). This total disregard for a prisoner s safety is the functional equivalent of wanting harm to come to the prisoner. McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir. 1991). Negligence does not satisfy the deliberate indifference standard, Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994), and it is not enough to show that a prison guard merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995). Deliberate indifference can be inferred only where defendants know there is a strong likelihood rather than a mere possibility that violence will occur. Watts v. 3 case 3:07-cv-00315-JTM-CAN document 4 filed 08/01/2007 page 4 of 4 Laurent, 774 F.2d 168, 172 (7th Cir. 1985). Prison officials cannot be expected to eliminate the possibility of all dangers. McGill v. Duckworth, 944 F.2d 344, 345 (7th Cir. 1991) ( Prisons are dangerous places ). Thus, the right to reasonable protection does not include the right to protection from random acts. See, McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991) ( some level of [danger] . . . is inevitable no matter what guards do ). Giving Thomas the benefit of the inferences to which he is entitled at the pleading stage of this proceeding, he has stated a claim. For the reasons set forth above, the Court: (1) GRANTS Herman Thomas, leave to proceed against Kenneth Owens and Thomas Goodlow in their individual capacities for monetary damages for failing to protect him in violation of the Eighth Amendment; (2) DISMISSES all other claims; (3) DIRECTS the clerk to transmit the summons and USM-285's for Kenneth Owens and Thomas Goodlow to the United States Marshals Service along with a copy of this order and a copy of the complaint and its attachments; (4) DIRECTS the United States Marshals Service, pursuant to 28 U.S.C. § 1915(d), to effect service of process on Kenneth Owens and Thomas Goodlow; and (5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Kenneth Owens and Thomas Goodlow respond, as provided for in the Federal Rules of Civil Procedure and N.D. IND. L.R. 10.1, only to the claims for which the plaintiff has been granted leave to proceed in this screening order. SO ORDERED. ENTER: August 1, 2007 s/James T. Moody JUDGE JAMES T. MOODY UNITED STATES DISTRICT COURT

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